Taking the declarant's perspective – and perspecives on emergency

Blog reader Ryan Scott has called to my attention the decision by the Oregon Supreme Court in State v. Camarena (Jan. 25, 2008), which is interesting in one respect. This is a rather typical domestic violence case involving a 911 call; as in Davis v. Washington, 126 S.Ct. 2266 (2006), the call was made shortly after the incident, in this case after the accused had already left the house. The court affirms the conviction, and holds the key portions of the call non-testimonial – right up to and including the victim’s identification of the defendant. The court holds that the portions after that, which are (coincidentally?) not necessary to uphold the conviction, are deemed testimonial, but their admission was harmless. Nothing particularly notable there. But, more clearly than most in the genre, this opinion clearly, and appropriately, views the matter from the perspective of the speaker; it gives more force than do most courts to the statement in Davis that “it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.” And it emphasizes that “statements made in situations not amounting to ‘interrogation’ may, depending on the circumstances, nevertheless qualify as testimonial.” Thus, the court seems to have the right idea of how the concept of emergency fits into confrontation doctrine. The balance of the complainant’s responses, the court says,

were unnecessary to resolve an ongoing emergency. Viewed objectively, the remaining questions and responses were directed at establishing facts only relevant to a subsequent criminal action.

I wish the word “only” were not in there; it should not be a requirement for the statement to be characterized as testimonial that it only bear on criminal proceedings. But at least, it seems to me, the court is giving the basic idea of emergency right its proper place in the doctrine – emergency is a factual consideration that might help determine whether or not a reasonable person in the position of the declarant would be focused on likely prosecutorial use of the statement. So, though the court’s analysis of the particular facts is open to question – but pretty much what one would expect given Davis – and the word “only” seems misplaced, its overall approach is mildly encouraging.

A Case Comment in the Harvard Law Review takes a different approach to the emergency doctrine. The Comment argues that, in determining whether an emergency exists for purposes of Confrontation Clause doctrine, courts should draw from cases applying emergency doctrines under the First, Fourth, Fifth, and Fourteenth Amendments and “consider the immediacy, particularity, and magnitude of [the] danger.” This is an interesting approach, but I don’t think it proves to be productive. It is divorced from any proper role of emergency under the Confrontation Clause. Unlike the author of the Comment, I do not believe emergency doctrine is meant to help the Clause in “balancing the procedural rights of criminal defendants against the need to protect the public.” Crawford is about as non-balancing an opinion as one could imagine. Courts should not consider whether a statement was made to help resolve an emergency as part of a balance of confrontation rights against the common interest in public safety; that is simply not an appropriate balance under the Clause. Rather, this should be a much more factually focused inquiry, as to whether the fact of emergency would likely crowd out consideration of prosecutorial use of the statement in the minds of a reasonable person in the position of the declarant.

The case on which the Comment focuses is People v. Nieves-Andino, 9 N.Y.3d 12, 872 N.E.2d 1188 (2007), involving a statement by a shooting victim to a responding officer at the scene of the crime. This is one of those cases in which the court not only views the matter from the point of view of the questioner but, very generously to the prosecution, concludes that the police officer was primarily focused on protecting the victim and others – even when asking the name and address of the accused, and even though the officer’s partner was meanwhile searching the area for shell casings. The Comment concludes that emergency doctrine should not have resulted in characterizing the statement as non-testimonial; this seems clearly to be the proper conclusion, and the one that three judges of seven on the New York Court of Appeals reached. Because the victim ultimately died – the prosecution was for second degree murder – it may be that admitting the statements could have been justified on the basis of forfeiture doctrine, depending on whether a deposition of the victim would have been practical.